Categories
Brandon Blog Post

PERSONAL GUARANTEE: THE TREACHEROUS THREAT THAT COULD COST ONTARIO BUSINESS OWNERS EVERYTHING

By Brandon Smith, Senior Vice-President, Licensed Insolvency Trustee at Ira Smith Trustee & Receiver Inc.


Personal Guarantee Key Takeaways:

  • Limited Liability is Often an Illusion: If you signed a personal guarantee (PG), your personal assets are directly tied to your business debt.
  • P.G.s Are Strictly Enforced: Ontario courts uphold personal guarantees, even if you didn’t fully understand what you signed.
  • Your Home, Savings, and More Are at Risk: Defaulting on a personal guarantee can lead to the seizure of your personal property.
  • LITs Offer the Unique Solution: Only a Licensed Insolvency Trustee (LIT) like Brandon Smith at Ira Smith Trustee & Receiver Inc. can legally restructure both your corporate or personal debts under Canadian insolvency law.
  • Don’t Wait, Act Now: Proactive advice from an LIT is crucial to protect your financial future across the Greater Toronto Area.

Introduction: Navigating the Critical Crossroads of Business and Personal Liability

You started a business, likely as an Ontario numbered company, to protect your personal assets. You understood “limited liability” meant your personal finances were separate from your company’s. This is a fundamental reason why many entrepreneurs choose incorporation in cities from Toronto to Aurora and beyond. But then you signed it – that seemingly routine document called a personal guarantee. For many business owners across the Greater Toronto Area, from Toronto to Vaughan, Mississauga to Markham, this single signature shatters the illusion of limited liability, turning your separate corporate entity into a direct link to your personal wealth.

When your business faces financial distress, that personal guarantee transforms from a formality into a profound threat, putting your home, savings, and future on the line. It’s a critical crossroads where corporate responsibilities spill over into your personal life, often with devastating speed. Understanding this critical crossroads before crisis hits, or knowing your options when it does, is not just wise – it’s essential for your financial survival and peace of mind. Without proper guidance, the path from corporate debt to personal ruin can feel inescapable.A scared 40-year-old male businessman is looking at his signed personal guarantee document alongside a house key and a business card, symbolizing the personal assets at risk for Ontario business owners.

Understanding the Personal Guarantee: The Foundation of Individual Liability

A personal guarantee (PG) is a legally binding promise you, as an individual, make to personally repay a business debt if your company cannot. It bypasses the limited liability protection that an incorporated company usually offers.

Defining a Personal Guarantee: More Than Just a Signature

A personal guarantee is a contractual agreement that holds you, the business owner, personally responsible for your company’s debts. This means that if your business, say, a thriving retail store in Richmond Hill or a busy construction company in Woodbridge, defaults on its financial obligations, the lender or creditor can legally come after your personal assets to recover the money owed. It’s a direct commitment from you, the person, not just your company, and it’s taken very seriously by courts across Ontario. Many entrepreneurs sign these without fully grasping the long-term implications, viewing them as just another piece of paperwork to get the deal done.

The Mechanics: How Your Personal Assets Become Collateral

When a business defaults on a loan or lease that is backed by a personal guarantee, the lender or landlord doesn’t just stop at the company’s assets. Because of your signature on the PG, they gain the legal right to pursue your personal assets. This can include your personal bank accounts, investments, real estate (like your family home, cottage, or other properties), vehicles, and even future wages through garnishment. Essentially, your personal financial well-being becomes collateral for your business’s obligations. This is a crucial detail that distinguishes a guaranteed debt from a purely corporate one. It fundamentally shifts the risk from the corporate entity to the individual who signed the document, making it a very powerful tool for creditors.

Why Lenders and Landlords Demand Them

Lenders (like banks and credit unions) and landlords demand personal guarantees primarily to reduce their risk. Many small and medium-sized businesses, especially new or rapidly growing ones in areas like Richmond Hill or Newmarket, may not have enough established credit history or substantial assets to secure a loan on their own.

A personal guarantee provides an extra layer of security, giving creditors confidence that they will recover their funds even if the business itself falters. It shows the business owner’s personal commitment to the venture.

Without it, many businesses would struggle to get the financing or commercial leases they need to operate, effectively stifling entrepreneurial growth in communities across Ontario. It’s often the price of doing business for small enterprises that don’t yet have the balance sheet of a large corporation.A scared 40-year-old male businessman is looking at his signed personal guarantee document alongside a house key and a business card, symbolizing the personal assets at risk for Ontario business owners.

Deciphering the Types of Personal Guarantees

Not all personal guarantees are the same, and understanding the nuances of each type is crucial for any business owner in Ontario.

  • Unlimited Personal Guarantee: This is the most common and, frankly, the riskiest type of personal guarantee. It makes you fully responsible for the entire business debt, including the principal amount, accumulated interest, any legal fees incurred by the creditor, and any other associated costs, with absolutely no cap. If your business in Concord or Thornhill takes out a $500,000 loan, and you sign an unlimited personal guarantee, you are personally liable for that full $500,000 plus all additional charges, even if your personal assets only amount to $200,000. This type of guarantee truly exposes all your personal assets to the maximum extent.
  • Limited Personal Guarantee: This type restricts your liability to a specific, predetermined amount or a certain percentage of the debt. For example, you might only be responsible for a set dollar amount, say $100,000, regardless of the total business debt. Or, if there are multiple guarantors, you might be responsible for only 50% of the loan. This offers a significant advantage by capping your potential personal exposure, making it a more palatable option for many business owners. Negotiating for a limited guarantee is always a wise strategy if possible.
  • Joint and Several Personal Guarantee: This type is often found in businesses with multiple owners or partners, common in collaborative business environments like those found in Woodbridge or Concord. While two or more people guarantee the loan, “joint and several” means each individual guarantor is legally responsible for the full amount of the debt, not just their proportional share. If one guarantor cannot pay due to personal financial issues, the lender can pursue the other guarantor(s) for the entire outstanding balance. This is a critical point that many business partners overlook, often leading to severe financial and personal disputes when a business fails. It means your personal finances are not only tied to the business but also to the financial health of your co-guarantors.
  • Conditional vs. Unconditional Personal Guarantee:
    • Conditional: A conditional personal guarantee is tied to specific conditions that must be met before the guarantee can be enforced. For instance, you might only be liable until the business reaches a certain sales target, if specific company assets are sold first, or if the primary borrower files for bankruptcy. These are less common, as lenders generally prefer the directness of an unconditional guarantee.
    • Unconditional: Most personal guarantees are unconditional. This means the lender can demand payment from you directly upon the business’s default, without first pursuing the business or its assets. They don’t need to wait for any specific events or try to recover from the company first; they can go straight to you, the personal guarantor. This provides the quickest and most direct path to recovery for the creditor.

Common Scenarios Where Personal Guarantees Appear

Personal guarantees are woven into the fabric of many commercial dealings for small and medium-sized businesses in Ontario, often without the owner fully realizing their pervasive nature.

  • Business Loans and Lines of Credit: This is arguably the most frequent scenario. Banks and other financial institutions almost always require a personal guarantee from business owners when extending credit. This is particularly true for startups or businesses without substantial collateral. Whether you’re securing a loan for equipment for your manufacturing plant in Markham or a line of credit to manage cash flow for your Toronto-based tech startup, a personal guarantee will likely be a non-negotiable term. Lenders want to know that the individual behind the business is committed and has personal stakes.
  • Commercial Leases: When renting office, retail, or industrial space in busy areas like Mississauga or Thornhill, landlords frequently demand a personal guarantee, more commonly worded in the lease document as a personal indemnity, from business owners. This ensures rent payments even if the business goes under or defaults on the lease agreement. A landlord doesn’t want to be left with an empty space and unpaid rent, so your personal guarantee serves as their insurance policy hoping the rent continues to be paid, regardless of the business’s solvency. In reality, if the business becomes insolvent, the personal guarantor/iindemnifier has lost their source of income too and will be pursued by the landlord.
  • Franchise Agreements: Becoming a franchisee often involves a significant upfront investment, ongoing royalty payments, and adherence to various operational standards. Franchisors typically require personal guarantees from franchisees to secure these commitments. They are investing in you as much as you are investing in their brand, and your personal guarantee ensures your full commitment to the success and financial obligations of the franchise, whether it’s a restaurant in Vaughan or a service provider in Newmarket.
  • Supplier Agreements: For significant credit lines with suppliers, especially for goods that are critical to your operation, a personal guarantee might be requested to ensure payment for goods or services. This is more common if the business has limited credit history, is new, or if the value of the supplies is substantial. A supplier wants assurance that they will be paid, particularly if their product is a major cost component for your business.
  • Government-Backed Loans: Even loans partially guaranteed by government programs (like some through the Business Development Bank of Canada or Export Development Canada) often still require a personal guarantee from the business owner for the unguaranteed portion, or to ensure compliance with loan terms.A scared 40-year-old male businessman is looking at his signed personal guarantee document alongside a house key and a business card, symbolizing the personal assets at risk for Ontario business owners.

The Profound Personal Guarantee Impact: Benefits vs. Grave Risks to Personal Assets

Signing a personal guarantee is a double-edged sword for any Ontario business owner. It presents both potential benefits that facilitate business growth and grave risks that can jeopardize personal financial stability.

Benefits:

  • Access to Financing: For many new or small businesses, especially those just starting out in competitive markets like Toronto or Vaughan, a personal guarantee is the only way to secure necessary loans or credit lines. Without it, many promising ventures would be unable to obtain the capital needed to start, expand, or even operate day-to-day. It’s often the key that unlocks crucial funding, enabling growth and operational continuity.
  • Improved Loan Terms: The added security provided by a personal guarantee might lead to more favourable financial terms. Lenders may be willing to offer lower interest rates, extended repayment periods, or larger loan amounts when they have the assurance of a personal guarantee, recognizing the reduced risk. This can significantly impact the long-term financial health and viability of the business.
  • Increased Creditor Confidence: A personal guarantee signals your strong personal commitment to the business. It demonstrates to lenders and landlords that you are fully invested and confident in your venture’s success, building trust and potentially opening doors to future financial opportunities or partnerships.

Grave Risks to Personal Assets:

  • Loss of Personal Assets: This is the most significant and immediate danger. If your business defaults, creditors can legally seize your home, family cottage, car, personal bank accounts, savings, investments, and other valuable possessions to satisfy the debt. For many, their home represents their largest personal asset and their life savings, all of which can be put at risk.
  • Impact on Personal Credit: A business default, followed by a personal guarantee claim, could damage your personal credit score. This makes it incredibly difficult to secure future personal loans, mortgages, car loans, or even credit cards, potentially for many years. It could affect your ability to rent property or even get certain jobs.
  • Unlimited Liability: As discussed, many personal guarantees are unlimited, meaning you’re on the hook for the entire debt, including all associated costs, which can far exceed the initial loan amount. This can be financially ruinous, as the total debt can balloon rapidly with interest and legal fees.
  • Personal Bankruptcy: If your personal assets are insufficient to cover the guaranteed debt after your business fails, and you haven’t yet secured a new source of income that could help fund a viable consumer proposal to deal with your debt, you could be forced into personal bankruptcy. This is a formal legal process under the Bankruptcy and Insolvency Act (BIA) that leads to long-lasting financial consequences and can affect your personal and professional reputation.
  • Strain on Relationships: In joint and several guarantees, disagreements among business partners about repayment obligations when the business faces distress can lead to severe personal disputes, legal battles, and the breakdown of relationships, adding emotional turmoil to financial stress. This is particularly true in family businesses or partnerships where trust is paramount.

Before You Sign: Due Diligence & Negotiation Playbook

While personal guarantees are often unavoidable for small business owners in Ontario, you can take proactive steps to protect yourself before committing your signature. This due diligence can save you immense heartache and financial hardship down the line.

  • Read Every Word, No Exceptions: Never assume anything. It is absolutely critical to thoroughly read the entire personal guarantee agreement, no matter how long, complex, or full of legal jargon it appears. Many people skim these documents, missing crucial clauses that can severely impact their personal finances. If you don’t understand something, ask.
  • Seek Independent Legal Advice: This is not merely a suggestion; it is critical. Have a lawyer, who is independent of the lender or landlord, review the personal guarantee in detail. They can explain the full extent of your liability, identify any hidden clauses, and advise you on the specific risks involved. While some provinces, like Alberta, require independent legal advice by law for certain PGs, it is highly recommended in Ontario as best practice, even if not mandatory. This small investment can prevent a catastrophic loss.
  • Negotiate Clauses to Mitigate Risk: Many business owners believe personal guarantees are non-negotiable, but this isn’t always true. While the core requirement might remain, you can often negotiate key terms:
    • Limit the Amount: Always try to cap your liability to a specific dollar amount or a percentage of the total debt. This sets a clear ceiling on your personal exposure, which is far better than an unlimited guarantee.
    • Limit the Term: Can the guarantee expire after a certain number of years, or once a substantial portion of the loan (e.g., 50% or 75%) is repaid? A finite term reduces your long-term risk.
    • Require Exhaustion of Company Assets First: Try to insist on a clause that states the lender must pursue all company assets and collateral before coming after your personal assets. This can delay or even avoid personal liability if the business has significant assets. (Note: This is often difficult to negotiate, as creditors prefer direct access.)
    • Release Upon Sale of Ownership: If you plan to sell your ownership stake in the business, negotiate a clause that automatically releases you from the personal guarantee once the sale is complete and approved by the lender.
    • Joint vs. Several Liability: If there are multiple owners, try to ensure liability is strictly “joint” (meaning each is only responsible for their specific, agreed-upon share), rather than “joint and several.” As discussed, “joint and several” means you could be on the hook for everyone’s portion.
  • Understand Recourse Agreements with Partners: If you’re guaranteeing a loan with business partners, have a clear, written agreement among yourselves about indemnification. This means if one partner is forced to pay on the PG, the others are legally obligated to reimburse them for their share.
  • Independent Witnessing: While not always legally required in Ontario, the lender or landlord requirimg an independent adult witness your signature adds evidentiary strength if the enforceability of the guarantee is ever challenged in court.

You may have no leverage in actually getting any terms of the personal guarantee amended, that does not mean you should not try.A scared 40-year-old male businessman is looking at his signed personal guarantee document alongside a house key and a business card, symbolizing the personal assets at risk for Ontario business owners.

When the Business Defaults: Navigating the Aftermath

The moment your business defaults on a loan or lease backed by a personal guarantee is a critical juncture. How you react can significantly impact your personal financial future.

When a business defaults on a loan or lease backed by a personal guarantee, the creditor will typically follow a structured legal process:

  1. Issue a Demand Letter: The creditor will formally notify both the business and you, as the guarantor, of the default. This letter will demand immediate full payment of the outstanding debt, including any accrued interest and penalties. For the borrower, the landlord also issues the appropriate notice required under the BIA.
  2. Initiate Legal Action: If the demand for payment isn’t met, the creditor can, and often will, sue you personally. Ontario courts enforce personal guarantees strictly, meaning your signature is often all they need to establish your liability. This lawsuit will seek a judgment against you for the full amount owed.
  3. Obtain a Judgment: If successful in court (which is common if the PG is valid), the creditor will obtain a court judgment against you personally. This judgment confirms your legal obligation to pay the debt.
  4. Enforce the Judgment: With a judgment in hand, the creditor has powerful legal tools to recover the money. This can lead to:
    • Wage Garnishment: A court order can be issued to your employer, directing a portion of your employment income to be redirected directly to the creditor each pay period until the debt is satisfied.
    • Bank Account Seizure: Funds in your personal bank accounts can be frozen and taken by the creditor to cover the debt.
    • Asset Seizure: Your personal property, including real estate (like your family home), vehicles, and investments, can be seized and sold to satisfy the debt. This can be a devastating process, potentially forcing the sale of assets you rely on.
    • Registration of a Writ: A writ of execution can be registered against your property (like your home), impacting your ability to sell or refinance it until the debt is paid.

Protecting Assets Post-Default

Once a personal guarantee is called, options for protecting assets become significantly more limited. However, it’s vital to act quickly and strategically.

  • Do Not Transfer Assets Fraudulently: Attempting to hide, transfer, or sell off assets after default in an effort to avoid creditors can be considered fraudulent conveyance or fraudulent preference under Canadian law. This can lead to severe legal penalties, including criminal charges, and will almost certainly worsen your financial situation, as the court can reverse these transactions. The best time to always seek professional advice before making any significant financial moves is BEFORE providing the personal guarantee. Post-default is already too late.
  • Negotiate with the Creditor: Sometimes, a creditor may be willing to negotiate a payment plan, a reduced lump-sum settlement, or other terms if you demonstrate a genuine willingness to address the debt, even if you can’t pay it all immediately. This often requires professional assistance, as an experienced advisor can present your situation more effectively and explore options you might not know exist.
  • Understand Exempt Assets: In Ontario, certain assets are exempt from seizure in a bankruptcy or other legal action. These are designed to allow individuals a basic level of survival. Examples include a portion of your household goods, tools of your trade (up to a certain value), some equity in a primary vehicle, some equity in a personal residence,and most life insurance policies. A Licensed Insolvency Trustee can provide a precise list of these protections, which can be crucial in preserving some financial stability.

The Indispensable Role of Professional Advice

When your business is struggling, and you’re facing demands on your personal guarantee, you need expert advice. This is not a situation to navigate alone.

The Unique Power of a Licensed Insolvency Trustee (LIT)

When your business is struggling, and you’re facing demands on your personal guarantee, you need expert advice. While lawyers can defend you in court or try to negotiate with creditors, they cannot offer the comprehensive solutions required to truly resolve both corporate and personal debt issues under Canada’s insolvency laws. This is where a Licensed Insolvency Trustee (LIT), like Brandon Smith, Senior Vice-President at Ira Smith Trustee & Receiver Inc., becomes your most critical ally.

LITs are the only federally regulated professionals legally authorized to administer all formal insolvency processes in Canada under the Bankruptcy and Insolvency Act (BIA). This unique mandate means we can address the “double bind” of corporate failure and personal guarantee exposure. We are not debt consultants or credit counsellors; we are officers of the court, licensed by the Canadian government, and uniquely positioned to provide legal pathways to debt relief. Whether your business is in Toronto, Vaughan, Markham, or any other community in Ontario, an LIT’s expertise is paramount.

Why Only an LIT Can Handle the “Double Bind”

Imagine your numbered company in Vaughan or Mississauga is in distress, and a lender is now pursuing you personally for a significant loan guaranteed by you. A lawyer can represent you in court, defend against the lawsuit, or try to negotiate with the creditor. While these services are valuable in certain contexts, a lawyer cannot provide the all-encompassing debt resolution solutions available under the Bankruptcy and Insolvency Act.

Here’s why only an LIT can effectively handle the complex interplay of corporate and personal insolvency, especially when personal guarantees are involved:

  • Stop Collection Calls and Legal Action Immediately: Only the filing of a formal insolvency process (like a Consumer Proposal or personal bankruptcy) by an LIT automatically triggers a “stay of proceedings” under the BIA. This is a powerful legal injunction that legally halts all unsecured creditor actions, including collection calls, lawsuits, wage garnishments, and even proceedings to seize assets. A lawyer can defend against these actions, but they cannot unilaterally stop them as an LIT can by filing under the BIA. This immediate relief from creditor pressure is often the first and most critical step towards regaining control.
  • Legally Reduce or Eliminate Debt: Lawyers can negotiate with creditors, but they don’t have the power to bind all creditors to a debt reduction agreement. An LIT, however, can administer a Consumer Proposal for individuals (which can include personal guarantee debt) or a Division I Proposal for corporations. These are formal, legally binding offers to creditors to pay back a portion of what’s owed, or extend the time to pay, typically resulting in a significant reduction of the overall debt. Once a Proposal is accepted by a majority of creditors (by dollar value), all included unsecured creditors are legally bound by its terms, even if they voted against it. This is a powerful, court-sanctioned tool no other professional can wield, allowing for a structured and manageable repayment plan or a full discharge of debt.
  • Administer Personal or Corporate Bankruptcy: If restructuring isn’t feasible or desirable, an LIT is the only professional who can administer personal bankruptcy (to discharge personal guarantee debt and other unsecured personal debts) or corporate bankruptcy (to formally liquidate the business in an orderly manner). These processes provide a complete fresh financial start for individuals or an orderly wind-down for corporations, a service that lawyers cannot provide. An LIT ensures that the bankruptcy process adheres to all legal requirements, protecting the rights of both the debtor and the creditors.
  • Holistic Approach to Interconnected Debt: The “double bind” of corporate failure and personal guarantee liability is precisely what LITs are designed to resolve. We understand how the corporate debt, the personal guarantee, and your personal finances are inextricably linked. We offer a holistic strategy that considers both the business’s situation and your personal financial health, finding the most efficient and legally sound solution for both. A lawyer’s approach often involves separate actions for corporate and personal legal issues.

Table: LIT vs. Lawyer in Resolving Personal Guarantee Debt

Feature

Licensed Insolvency Trustee (LIT)

Lawyer (Debt-Related Matters)

Legal Authority

Federally regulated under the

Bankruptcy and Insolvency Act

(BIA), an officer of the court.

Regulated by provincial law societies; represents clients in legal proceedings.

Debt Restructuring

Can legally reduce and consolidate unsecured debt

via Consumer Proposals or Division I Proposals, binding all creditors to a formal plan.

Can negotiate with individual creditors, but cannot force them to accept a reduced settlement or legally bind all creditors to a collective plan.

Stopping Creditor Action

Filing a Proposal or Bankruptcy triggers an immediate, legal “stay of proceedings,” halting all collections, lawsuits, and garnishments.

Can defend lawsuits and send cease and desist letters, but cannot unilaterally stop legal actions without a specific court order for each.

Bankruptcy Administration

Only LITs

can administer personal or corporate bankruptcies, leading to debt discharge or orderly liquidation.

Cannot administer bankruptcy; typically refers clients to an LIT when bankruptcy is the appropriate solution.

Holistic Approach

Addresses

both

corporate insolvency and personal liability from guarantees through BIA processes.

Primarily focuses on legal defense or specific debt negotiations; often separates corporate legal issues from personal liability.

Cost Structure

Fees for consumer insolvencies are federally regulated and often included in the proposal payment; initial consultation often free.

Hourly billing is common; costs can become very expensive, especially in litigation, with no guarantee of debt reduction.

Goal

To provide a legal path to debt relief and a fresh financial start for individuals and businesses, maximizing asset retention.

To represent clients’ legal interests, defend against claims, pursue legal action, or draft legal agreements.

When facing the complexity of a personal guarantee, especially in conjunction with business distress, you need the specialized expertise and legal authority that only an LIT provides. Their role is unique and indispensable for navigating Canada’s insolvency laws.A scared 40-year-old male businessman is looking at his signed personal guarantee document alongside a house key and a business card, symbolizing the personal assets at risk for Ontario business owners.

Brandon’s Personal Guarantee Take:

“As Senior Vice-President at Ira Smith Trustee & Receiver Inc., I’ve seen countless Ontario business owners grapple with the crushing weight of a personal guarantee. The initial shock of realizing their personal assets are exposed is immense. Often, people feel isolated and overwhelmed, believing there’s no way out. My team and I are here to tell you: you are not alone, and you absolutely have options. We understand the fear, the stress, and the uncertainty that comes with such a significant financial threat.

Our role is to provide clear, empathetic guidance through the Bankruptcy and Insolvency Act. We’re licensed by the Canadian government specifically to help individuals and businesses like yours find relief from overwhelming debt, including those tied to personal guarantees. Don’t let pride or fear delay seeking help; early action can make all the difference in preserving your home, your savings, and your financial future. We serve clients across the GTA, from Aurora to Newmarket, and are ready to listen without judgment.”

Frequently Asked Questions (FAQs)

Q: What is a personal guarantee and how does it work in Ontario?

A: A personal guarantee is a legally binding agreement where an individual (usually a business owner) promises to be personally responsible for a company’s debt if the company cannot pay it. In Ontario, if the business defaults, the lender can pursue your personal assets directly, bypassing the usual limited liability protection of your corporation. This means your personal wealth is on the line.

Q: Can a personal guarantee be discharged or eliminated if my business fails?

A: Yes, personal guarantee debt can often be discharged or significantly reduced through formal insolvency processes administered by a Licensed Insolvency Trustee (LIT). A Consumer Proposal or personal bankruptcy, for example, can include and eliminate personal guarantee obligations, providing you with a fresh financial start and relief from the debt.

Q: Why should I consult a Licensed Insolvency Trustee (LIT) if I’m facing personal guarantee debt?

A: An LIT is the only professional in Canada legally authorized to administer government-regulated insolvency proceedings like Consumer Proposals and bankruptcies under the Bankruptcy and Insolvency Act. This unique legal authority means an LIT can legally stop collection calls, lawsuits, and wage garnishments, and can structure a plan (a Proposal) that reduces or eliminates your personal guarantee debt, binding all creditors. Lawyers cannot offer these specific debt restructuring solutions that provide a legal fresh start.

Q: What is “joint and several” liability in a personal guarantee?

A: “Joint and several” liability means that if multiple people sign a personal guarantee, each person is individually responsible for the entire amount of the debt, not just a portion or their specific share. The creditor can choose to pursue any one of the guarantors for the full outstanding balance, making it a particularly risky type of guarantee for business partners.

Q: Will signing a personal guarantee affect my personal credit score?

A: Yes, a personal guarantee ties your personal credit to your business’s financial health. If your business defaults and you’re unable to meet the obligations of the personal guarantee, it will negatively impact your personal credit score. This can make it difficult to get personal loans, mortgages, or credit cards in the future.

Q: Are there any assets in Ontario that are protected from seizure if I default on a personal guarantee?

A: Yes, in Ontario, certain assets are considered “exempt” from seizure in insolvency proceedings, up to specific values. These can include a portion of your household goods, tools of your trade, some equity in a primary vehicle, most RRSPs and RRIFs (except for contributions made in the 12 months before filing for insolvency), and most life insurance policies. A Licensed Insolvency Trustee can provide you with the exact details of these exemptions.A scared 40-year-old male businessman is looking at his signed personal guarantee document alongside a house key and a business card, symbolizing the personal assets at risk for Ontario business owners.

Conclusion: Take Control of Your Financial Future – Contact Ira Smith Trustee & Receiver Inc.

The personal guarantee is a powerful and often misunderstood legal document that can have devastating effects on Ontario business owners and their families. While it may seem like a simple step to secure vital business financing, it truly makes your personal assets the ultimate collateral, blurring the lines between your business and personal financial security.

If your numbered company in Toronto, Vaughan, Woodbridge, Concord, Mississauga, Thornhill, Richmond Hill, Markham, Aurora, or Newmarket is facing financial difficulties, and personal guarantees are a significant concern, you need to act quickly and decisively. Relying solely on general legal advice may not provide the comprehensive, legally binding debt restructuring solutions you truly need to protect your future.

As a Licensed Insolvency Trustee, Ira Smith Trustee & Receiver Inc., led by Senior Vice-President Brandon Smith, possesses the unique legal authority and extensive expertise to help you navigate these complex challenges. We can explore all your options, from Consumer Proposals that reduce your debt and protect your assets, to guiding you through a corporate and personal bankruptcy process if necessary. Our approach is professional, empathetic, and always focused on achieving the best possible outcome for your specific situation. We are here to bring clarity and provide a pathway forward, no matter how dire things may seem.

Don’t let the silent threat of a personal guarantee lead to financial ruin. Contact Ira Smith Trustee & Receiver Inc. today for a free, no-obligation consultation. We are here to help you understand your situation, explore your legal options under Canadian insolvency law, and create a clear path towards a debt-free future. You deserve a fresh start, and we are here to help you achieve it.

Take the first crucial step towards a brighter financial future for your business. Contact Ira Smith Trustee & Receiver Inc. today to schedule your free initial consultation. Your business’s pivot to sustainable success starts now.

Don’t let financial uncertainty dictate your future. If you or your business is struggling with debt, losing sleep, or facing the possibility of legal action, contact Ira Smith Trustee & Receiver Inc. today. We offer a free, confidential consultation to discuss your situation, explain your options in plain language, and help you develop a clear, actionable plan. Our team of Licensed Insolvency Trustees is dedicated to providing the compassionate, professional support you need to regain control and achieve a debt-free life. Take the first step towards a brighter financial future – call us now.

Ira Smith Trustee & Receiver Inc. is licensed by the Office of the Superintendent of Bankruptcy and is a member of the Canadian Association of Insolvency and Restructuring Professionals.

——————————————————————————–

Disclaimer: This analysis is for educational purposes only and is based on the cited sources and my professional expertise as a licensed insolvency trustee. The information provided does not constitute legal or financial advice for your specific circumstances.

Every situation is unique and involves complex legal and factual considerations. The outcomes discussed in this article may not apply to your particular situation. Situations are fact-specific and depend on the particular circumstances of each case.

Please contact Ira Smith Trustee & Receiver Inc.get in touch with Ira Smith Trustee & Receiver Inc.

About the Author:

Brandon Smith is a Senior Vice-President at Ira Smith Trustee & Receiver Inc. and a licensed insolvency trustee serving clients across Ontario. With extensive experience in complex court-ordered receivership administration and corporate insolvency & restructuring proceedings, Brandon helps businesses, creditors, and professionals navigate challenging financial situations to achieve optimal outcomes.

Brandon stays current with landmark developments in Canadian insolvency law. He brings this cutting-edge knowledge to every client engagement, ensuring his clients benefit from the most current understanding of their rights and options.A scared 40-year-old male businessman is looking at his signed personal guarantee document alongside a house key and a business card, symbolizing the personal assets at risk for Ontario business owners.

Categories
Brandon Blog Post

PROTECTION FROM CREDITORS: WHAT TORONTO ENTREPRENEURS ABSOLUTELY NEED TO KNOW BEFORE IT’S TOO LATE

protection from creditors

Protection From Creditors: The Real Problem Toronto Business Owners Face

I need to start by reminding you that I am a licensed insolvency trustee, not a lawyer. This Brandon’s Blog on protection from creditors is not about how to hide your assets from creditors when financial trouble looms. It is also not legal advice. For that, you need to see your lawyer.

Rather, this is for informational purposes about the realization that pretty much every Toronto entrepreneur risks losing their assets to business debt. This Brandon’s Blog is meant to provide practical steps to gain protection from creditors for your personal assets while resolving business financial troubles from a licensed insolvency trustee with many success stories.

Meet Carlos. He started a food truck in Toronto selling arepas in 2022. By 2024, food costs doubled, and he took out a $100,000 loan using his North York home and his food truck as collateral. Now, he’s three months behind on payments. The bank wants his business AND his house.

Carlos isn’t alone. Nearly 3 out of 4 small business owners in Ontario lose sleep over mixed personal and business debts. With consumer debt hitting record highs and business bankruptcies up almost 18% in Ontario last year, keeping your business problems from becoming problems for your personal financial affairs is crucial.

Protection From Creditors: Why Your Business Debt Becomes Personal -Three Common Traps

Trap #1: Using Personal Credit Cards for Business

“I just needed to buy supplies quickly.”

The hard truth: When you swipe your card for business expenses, you’re personally responsible for that debt. 68% of new businesses use personal credit.

Trap #2: Signing Personal Guarantees

“The bank said I had to sign my name to get the loan.”

The hard truth: Almost all Canadian small business loans (92%) require personal guarantees. Last year, a Mississauga contractor lost his heavily mortgaged home because he guaranteed a $350,000 equipment loan he could not repay.

Trap #3: Mixing Money

“I don’t have time to keep everything separate.”

The hard truth: When your personal and business money flows through the same accounts, you’re asking for trouble. Almost 9 out of 10 bankruptcy cases get more complicated and expensive because of mixed finances.

Toronto entrepreneur standing at crossroads between business debt storm and financial protection path with CN Tower skyline in background
protection from creditors

Four Ways Toronto Entrepreneurs Can Get Protection From Creditors

Option 1: Creditor Protection Through Business Restructuring (For Incorporated Companies)

This uses Canada’s Companies’ Creditors Arrangement Act (CCAA) or the restructuring provisions of the Bankruptcy and Insolvency Act (BIA) to:

  • Keep your business running while you work out new payment terms
  • Shield your personal stuff from business creditors

Real example: A restaurant group kept six locations open through this process last year.

Good points:

  • Protects your personal assets
  • Keeps your employees working

Not-so-good points:

  • CCAA only works for bigger companies ($5+ million in debt) and is court-driven and therefore very expensive.
  • For companies that owe less than $5 million, the restructuring provisions of the BIA are available and is a less costly process than the CCAA. Technically, nothing is stopping a debtor that qualifies under the CCAA to use the BIA instead.
  • Takes 6-18 months to complete

Option 2: Consumer Proposal (Perfect for Many Small Unincorporated Business Owners)

A consumer proposal can legally:

  • Cut up to 80% off your total debt
  • Let you keep your assets if completed successfully
  • Stop collection calls, lawsuits, and bank account seizures immediately

Real example: A Scarborough sole proprietor cut $150,000 in mixed debts down to $30,000 through a consumer proposal.

How it works:

  1. Meet with a licensed insolvency trustee (free first meeting)
  2. File paperwork under the BIA
  3. Make one affordable monthly payment for up to 5 years that your unsecured creditors have agreed to either at a meeting of creditors (if required) or having agreed in advance, and therefore no meeting is necessary

Option 3: Strategic Personal Bankruptcy

Sometimes starting fresh makes the most sense, especially when:

  • Your business can’t be saved
  • You need immediate relief from overwhelming debt
  • You don’t own any or many assets

What Can You Keep? Ontario’s 2025 Bankruptcy Exemptions

When dealing with serious debt problems, many Toronto entrepreneurs worry they’ll lose everything. Good news – Ontario law lets you keep certain things even during bankruptcy or proposals.

Your Home

You can keep your home if: You have $10,783 or less in equity (that’s your home’s value minus what you still owe on your mortgage).

You might lose your home if: Your equity is higher than $10,783. In that case, the trustee might sell your home to pay creditors, but you’d still get the first $10,783.

What Else Can You Keep?

Household Items: Furniture, appliances, dishes, and food up to $14,180

Work Tools: Equipment you need for your job or business up to $14,450

Your Car: One vehicle worth up to $6,600

Clothes: All your necessary clothing, no dollar limit

Retirement Savings: Most RRSPs are protected (except money you put in during the 12 months before filing)

Life Insurance: Many policies are protected from creditors

For Farmers: Special protections for livestock, equipment, and tools up to $31,379

Real-World Example: I will call this woman Samira. When Samira, a Toronto web designer, filed for bankruptcy, she kept her car valued at $5,000, her computer equipment (valued at $8,000), and her condo (because her equity was only $9,000). This gave her the fresh start she needed without losing essential assets. She still had lots of secured debt, which is another issue, but she did not have to give up those assets.

Note: These exemption numbers can change yearly with regulations. Always check with a licensed insolvency trustee for the most current exemption amounts.

Option 4: Debt Consolidation (The 2025 Method)

Many Toronto entrepreneurs are now:

  • Working with alternative lenders to the big banks, such as credit unions
  • If of sufficient value, using business equipment as collateral instead of their homes

Warning: Be careful with this option. Nearly half of consolidated debts end up in default within two years.

Get Protection From Creditors Today: The One-Hour Checklist

Step 1: Separate Your Money (This Afternoon)

  • Open business accounts at a different bank from your personal accounts
  • Stop using credit cards that you cannot afford to pay off monthly for business expenses
  • Set up automatic transfers for your business’s “salary”

Step 2: Document Everything (This Evening)

  • Take photos of all business equipment
  • Make copies of all loan agreements
  • Create a list of who you owe money to (both business and personal)

Step 3: Get Help (This Week)

  • Contact the Ontario Business Legal Clinic for free advice
  • Visit Toronto’s Office of Financial Empowerment
  • Calculate your business debt ratio (Total Debts ÷ Total Assets)

    Toronto entrepreneur standing at crossroads between business debt storm and financial protection path with CN Tower skyline in background
    protection from creditors

Protection From Creditors: Real Toronto Success Stories

The Tech Startup That Bounced Back

Problem: A Markham software company owed $2.3 million to creditors, both secured creditors and unsecured creditors. The founder had used his $900,000 condo as loan collateral.

Solution: Through a court-supervised restructuring, the company cut their debt by 60%. Today, they’re profitable and employ 12 people.

The Food Truck Owner Who Saved His Home

Problem: Carlos (from our opening story) had $230,000 in combined debt. The CRA was about to garnish his income.

Solution: Through a consumer proposal, he reduced his unsecured debt to $30,000 and will be paying it off over five years ($500 monthly). He can pay that along with his bank loan payments and therefore keep his home and his food truck.

Protection From Creditors: Three Things To Do Before Friday

  1. Download our free worksheet:Toronto Debt Relief Worksheet“. Fill out all the requested information. Warning: it asks for a lot of information because it aims to look at every important aspect of your financial situation.
  2. Review carefully all the information you filled in: If you were honest and completed the whole worksheet, the issues you need to work on will jump right off the page at you.
  3. Book your free consultation: If the worksheet highlights issues you don’t know what the best solution would be to fix them, contact us for a no-cost consultation.

    Toronto entrepreneur standing at crossroads between business debt storm and financial protection path with CN Tower skyline in background
    protection from creditors

Top Questions Toronto Business Owners Ask About Debt Protection From Creditors

Q: Why should I worry about separating business and personal debt?

A: Almost 60% of Toronto entrepreneurs end up losing personal assets because of business debts. With business bankruptcies up 17.8% in Ontario last year and consumer debt hitting record highs, keeping these separate isn’t just smart—it’s survival. Many of my clients couldn’t sleep at night until they protected their personal finances from business troubles.

Q: Can the CRA take my house for business taxes?

A: Yes, if:

  • Your business is incorporated but has unpaid employee source deductions or outstanding HST. That is a personal liability of all directors, notwithstanding your business is run by a separate legal entity.
  • You operate your business as a proprietorship or partnership. In those situations, your business debts are also your personal debts.

We helped several Toronto families keep their homes from CRA collection last year alone. The CRA has stronger collection powers than most creditors and can place liens on your property for unpaid taxes.

Q: My business is incorporated—doesn’t that protect me automatically?

A: This is a dangerous myth I see hurting Toronto entrepreneurs. Incorporation only protects you if you never personally guaranteed any loans or credit cards. The truth? About 92% of Canadian small business loans require personal guarantees, which means your home and savings are still at risk.

Q: How fast can I stop collection actions?

A: As soon as you do an insolvency filing. It is something called the “stay of proceedings” that kicks in. This legally stops all collection efforts immediately, usually within 5-7 days of your first meeting with a licensed insolvency trustee. Last month, we helped a restaurant owner stop garnishment actions that were just 48 hours away from freezing her accounts.

Q: How do I know if I’ve fallen into the “mixed finances trap”?

A: Check these warning signs: Do you use the same credit card for groceries and business supplies? Is your business operating account at the same bank as your personal chequing account? Have you ever transferred money between personal and business accounts without proper documentation? If you answered yes to any of these, you need to take action immediately.

Q: What’s better for a small business owner—bankruptcy or consumer proposal?

A: For most Toronto entrepreneurs I work with, either a consumer proposal or a BIA restructuring proposal (for those who owe more than the consumer proposal limit of creditors in excess of $250,000, not including any debts secured against your home) offers a better alternative. You can keep your assets (including your home), reduce unsecured debts by up to 75%, and rebuild your credit faster. Bankruptcy should be your last resort, though it works well when you need immediate relief and don’t have significant assets to protect.

Q: How do I know which debts are dischargeable in bankruptcy?

A: Most business and personal unsecured debts can be eliminated through bankruptcy, including credit cards, lines of credit, and supplier accounts. However, some debts survive bankruptcy, including student loans less than seven years since you stopped being a student, court fines, and child support. I recommend bringing a complete list of your debts to your consultation for a personalized assessment.

Protection From Creditors Conclusion

I hope you’ve found this protection from creditors Brandon’s Blog, helpful. There is a lot of uncertainty in business today. The time to properly plan to gain asset protection from creditors is when you begin your business. Once your business is in financial trouble, it is too late.

If you or someone you know is struggling with too much debt, remember that the financial restructuring process, while complex, offers viable solutions with the right guidance. As a licensed insolvency trustee serving the Greater Toronto Area, I help entrepreneurs understand their options and find a path forward during financial challenges.

At the Ira Smith Team, we understand the financial and emotional components of debt struggles. We’ve seen how traditional approaches often fall short in today’s economic environment, so we focus on modern debt relief options that can help you avoid bankruptcy while still achieving financial freedom.

The stress of financial challenges can be overwhelming. We take the time to understand your unique situation and develop customized strategies that address both your financial needs and emotional well-being. There’s no “one-size-fits-all” approach here—your financial solution should be as unique as the challenges you’re facing.

If any of this sounds familiar and you’re serious about finding a solution, reach out to the Ira Smith Trustee & Receiver Inc. team today for a free consultation. We’re committed to helping you or your company get back on the road to healthy, stress-free operations and recover from financial difficulties. Starting Over, Starting Now.

The information provided in this blog is intended for educational purposes only. It is not intended to constitute legal, financial, or professional advice. Readers are encouraged to seek professional advice regarding their specific situations. The content should not be relied upon as a substitute for professional guidance or consultation. The author, Ira Smith Trustee & Receiver Inc., and any contributors do not assume any liability for any loss or damage.

Toronto entrepreneur standing at crossroads between business debt storm and financial protection path with CN Tower skyline in background
protection from creditors
Categories
Brandon Blog Post

BANKRUPTCY AND BUSINESS FAILURE: WHY THE STATISTICS UNDOUBTEDLY DO NOT TELL THE FULL STORY


bankruptcy and business

Bankruptcy and Business: Introduction

As a licensed insolvency trustee, (previously referred to as a trustee in bankruptcy), my role involves assisting individuals and businesses in managing the complexities associated with entrepreneurship. The conclusion of a business often occurs without fanfare; it is not typically marked by formal announcements or celebratory farewells but rather unfolds quietly amidst the ongoing activity of the market. Despite rising bankruptcy and business failure through the recorded insolvency numbers, many businesses close without it showing up in the insolvency statistics, revealing a deeper truth about economic resilience.

For every corporate insolvency file that I administer, be it the legal process of a bankruptcy protection financial restructuring or a bankruptcy liquidation, there have been many more inquiries from entrepreneurs where the best advice I can give is rather than spending money on corporate bankruptcy, just shut down the business yourself.

In this Brandon’s Blog, which is aimed at Canadian entrepreneurs and their professional advisors, be they financial advisors, lawyers or accountants, I explore the complexities of bankruptcy and business failures, where one fact stands out: the numbers can be deceiving. The current rise in reported business insolvencies has raised eyebrows. But what’s behind these figures? Many businesses close their doors without formally declaring bankruptcy.

Bankruptcy and Business: Types of Business Structures Affected by Bankruptcy

It is essential to understand the different types of business structures that can be affected by or are eligible for bankruptcy. In this section, I’ll explore the impact of bankruptcy on sole proprietorships, partnerships, and incorporated companies.

Sole Proprietorships

A sole proprietorship is a business owned and operated by one individual personally. In the event of bankruptcy, the sole proprietor’s personal assets, including their home, savings, and other personal property, can be used to pay off business debts. This is because, from a legal perspective, the business and the individual are considered one and the same.

Partnerships

A partnership is a business owned and operated by two or more individuals. In the event of one or more partners filing for personal bankruptcy, the partnership’s assets are typically divided among the partners, and each partner is responsible for paying off their share of the debts. However, if one partner files for bankruptcy protection, then the partnership is automatically dissolved. If one partner is unable to pay their share, the other partners are responsible for paying off the remaining business debts.

Incorporated Companies

An incorporated company, also known as a corporation, is a separate legal entity from its shareholders. In the event of bankruptcy, as the corporation is a separate entity, the corporation’s assets are typically liquidated to pay off its debts, and the shareholders are not personally responsible for paying off the debts. However, if the corporation is insolvent, the shareholders may still be at risk of losing their investment.

Key Takeaways

  • Sole proprietorships: The business and the individual are considered one and the same, and personal assets can be used to pay off business debts.
  • Partnerships: Partners are responsible for paying off their share of the debts, or alternatively, each partner is responsible for paying off the entire amount of all debts. If one partner is unable to pay, and especially if one or more partners file for personal bankruptcy, the other partners are responsible for paying off the remaining business debts.
  • Incorporated companies: The corporation’s assets are typically liquidated to pay off its debts, and shareholders are not personally responsible for paying off the debts, but may still be at risk of losing their investment.

Why Understanding Business Structure is Important

Understanding the type of business structure you have is essential in the event of insolvency, as it influences the appropriate debt relief solution that can be developed and executed. The relationship between bankruptcy and your business structure will affect how your assets are managed and how your debts are settled. For instance, if you operate as a sole proprietorship, you may be personally liable for the repayment of business debts. In contrast, if your business is incorporated, your personal assets are typically safeguarded from creditors.

Bankruptcy can impact any business structure; sole proprietorships, partnerships, and corporations. It is important to comprehend the specific business structure you operate under and the implications a bankruptcy protection filing may have on both you and your business. For Canadian entrepreneurs facing challenges with business debt, it is advisable to consult a licensed insolvency trustee to explore available options and make informed decisions regarding your financial situation.

Although parts of the balance of this article will focus on the corporate business structure, most will also be applicable to Canadian business regardless of the business structure.

bankruptcy and business
bankruptcy and business

Understanding Bankruptcy and Business in Canada: A Guide for Businesses

As a Canadian entrepreneur, it is important to recognize that operating a business involves various risks and challenges. Even with diligent management, financial difficulties may arise that jeopardize the viability of your company. In these circumstances, it is essential to be well-informed about the options at your disposal. One widely recognized and effective solution in such situations is corporate bankruptcy.

What is Corporate Bankruptcy in Canada?

Corporate bankruptcy, arising from a corporate insolvency, occurs when a business is unable to pay its overwhelming debts as they become due – that is the definition of an insolvent company. This can happen due to a variety of reasons, including poor cash flow management, increased competition, unexpected expenses, or even a downturn in the economy. When a business becomes insolvent, it may be forced to cease operations, leading to financial losses for its creditors, employees, and shareholders.

Types of Bankruptcy For Corporations in Canada

There are two main types of corporate bankruptcy in Canada: proposal and bankruptcy.

  • Proposal: A corporate proposal is an alternative to bankruptcy. It is a formal payment plan under the Bankruptcy and Insolvency Act (Canada) BIA that allows a business a period of time to settle its debts with its creditors. The proposal is presented to the creditors, who then vote on whether to accept it. If accepted, the proposal then goes to court for approval. When the court approves the proposal, it then is binding on the debtor business and the creditors.

Once the proposal becomes binding, the business can restructure its debt and continue operating by making the monthly payments to the Trustee that it promised to make for the benefit of its creditors. This is otherwise known as a corporate restructuring plan.

  • Bankruptcy: Bankruptcy is also a formal process under the BIA where the business assets are liquidated by selling off its assets. The Trustee then uses the net proceeds of sale to pay for the cost of the corporate bankruptcy process and then to distribute what remains to the unsecured creditors on a pro rata basis according to their claims.

Benefits of Corporate Bankruptcy in Canada

While bankruptcy protection may seem like a last resort, it can actually be a beneficial option for businesses facing financial difficulties. Some of the benefits of corporate bankruptcy in Canada include:

  • Protection from Creditors: Bankruptcy provides a stay of proceedings, which means that creditors cannot take or continue legal action against the business or its assets.
  • Reorganization: Bankruptcy allows businesses to restructure their debt and reorganize their operations to become more sustainable.
  • Fresh Start: Bankruptcy can provide a fresh start for businesses, allowing them to emerge from insolvency and start anew.

When to Consider Corporate Bankruptcy in Canada

If your business is experiencing financial difficulties, it’s essential to seek professional advice from a licensed insolvency trustee. Here are some signs that may indicate it’s time to consider corporate bankruptcy:

  • Cash Flow Problems: Cash flow problems can indicate underlying financial issues within a business. If a company is consistently struggling to pay its bills on time, it is essential to investigate the root causes of this cash flow challenge, as it may reflect broader financial health concerns.
  • High Debt Levels: When a business is burdened with significant debt and faces challenges in meeting its repayment obligations, considering bankruptcy may be a viable option to explore.
  • Loss of Key Customers or Suppliers: Loss of key customers or suppliers can indicate underlying issues within a business that require attention. It is important to analyze the reasons behind this loss, as it may reflect broader challenges affecting the organization’s performance and stability. Addressing these issues promptly can help mitigate potential negative impacts on operations and profitability.

Corporate bankruptcy in Canada is a multifaceted process that can present challenges for businesses in financial distress. However, it can serve as an effective mechanism for companies to address their financial challenges and restructure. By familiarizing themselves with the available options and consulting with qualified professionals, businesses can effectively navigate the bankruptcy process, potentially emerging in a more resilient and sustainable position. Entrepreneurs in Canada facing significant business debt are encouraged to reach out to a licensed insolvency trustee to explore their available options.

Bankruptcy and Business: The Overlooked Landscape of Business Closures

Understanding Bankruptcy and Business Insolvency Filing vs. Closure

Have you ever wondered the difference between a business going bankrupt and closing its doors? It’s important. Business insolvency is the financial condition that the business cannot pay all of its debts as they come due. Business bankruptcy is a legal process where a business files for bankruptcy in order to deal with the distribution of its assets among its creditors in a fair and orderly fashion, as far as the money can go. On the other hand, closure can happen for many reasons, like poor management or market changes. Bankruptcy and business failure many times go hand in hand, but just as often, they don’t.

Reasons For Bankruptcy and Business Failure

Understanding the Common Causes

As a licensed insolvency trustee, I’ve seen firsthand the devastating impact of business bankruptcy on entrepreneurs, employees, and the economy as a whole. While no business is immune to financial difficulties, understanding the common reasons for business bankruptcy can help entrepreneurs take proactive steps to mitigate risks and avoid insolvency.

In this section, we’ll explore the three main categories of reasons for business bankruptcy: Financial Challenges, Operational Issues, and External Factors.

Financial Challenges

Financial challenges are often the most obvious reason for business bankruptcy. Some common financial challenges that can lead to insolvency include:

  • Cash flow management issues: Inability to manage cash flow can lead to delayed payments, missed deadlines, and ultimately, insolvency.
  • High debt levels: Carrying too much debt can put a significant strain on a business’s finances, making it difficult to meet financial obligations.
  • Inadequate funding: Insufficient startup capital or ongoing funding can hinder a business’s ability to grow and operate successfully.
  • Poor budgeting: Failing to create a realistic budget or failing to stick to it can lead to financial difficulties.

Operational Issues

Operational issues can also contribute to business bankruptcy. Some common operational issues that can lead to insolvency include:

  • Inefficient operations: Poorly managed operations can lead to wasted resources, increased costs, and decreased productivity.
  • Lack of scalability: Failing to adapt to growth or changes in the market can lead to operational inefficiencies and financial difficulties.
  • Poor management: Ineffective leadership or management can lead to poor decision-making, which can ultimately result in insolvency.
  • Failure to innovate: Failing to innovate or adapt to changes in the market can lead to stagnation and financial difficulties.

External Factors

External factors can also play a significant role in business bankruptcy. Some common external factors that can lead to insolvency include:

  • Economic downturns: Economic recessions or downturns can lead to reduced consumer spending, decreased demand, and financial difficulties.
  • Competition: Increased competition can lead to reduced market share, decreased revenue, and financial difficulties.
  • Regulatory changes: Changes in regulations or laws can lead to increased costs, decreased revenue, and financial difficulties.
  • Natural disasters: Natural disasters or other external events can lead to significant financial losses and insolvency.

By understanding the common reasons for business bankruptcy, entrepreneurs can take proactive steps to mitigate risks and avoid insolvency. This includes creating a solid business plan, managing cash flow effectively, and staying adaptable to changes in the market. As a licensed insolvency trustee, I’ve seen firsthand the devastating impact of business bankruptcy on entrepreneurs and the economy. By being aware of the common causes of business bankruptcy, entrepreneurs can take steps to avoid insolvency and achieve long-term success.

Statistical Insights

Recent statistics highlight an important trend that merits our attention. Following the 2008 financial crisis, we saw a notable rise in business closures, with many not opting to file for bankruptcy. This is quite surprising, isn’t it?

In the first quarter of this year, Canada experienced 2,003 insolvencies, which included 1,599 bankruptcies and 404 proposals. This marks an 87 percent increase compared to the same quarter last year and represents the highest number of insolvencies in the first three months since early 2008.

Additionally, Statistics Canada provides insights into active businesses by tracking their monthly payroll filings with the Canada Revenue Agency (CRA). Due to a slight delay in data reporting and analysis, the latest figures are from January, showing there were 936,327 active businesses in Canada. However, there were also 43,121 closures, being companies that reported employees to the CRA in December 2023 but did not in January 2024.

“The real tragedy of business closures hides in the shadows of insolvency statistics.”

In light of all this, understanding that a business can disappear without ever declaring bankruptcy is crucial. It paints a clearer picture of our economy. Whether due to management issues or other challenges affecting the viability and solvency of the business, this is a landscape that deserves attention. What are your thoughts on this?

bankruptcy and business
bankruptcy and business

Bankruptcy and Business: The Hidden Truth Behind Business Closures

Understanding the Landscape of Business Failures

Did you know that the actual number of business closures is likely much higher than what insolvency figures reveal? It’s a shocking reality. Business insolvencies are soaring to heights we haven’t seen since the financial crisis of 2008. But here’s the catch: these numbers only represent a fraction of the businesses that are truly shutting down each year.

Why Do Businesses Fail?

Let’s dig into some reasons why businesses fail:

  • Lack of Cash Flow: Many businesses struggle with cash management. Without enough cash coming in, they can’t pay bills.
  • Poor Decision-Making: Sometimes, choosing the wrong direction can lead to disaster. It’s like sailing without a compass.
  • Competition: It’s a wild world out there. If you can’t keep up with your competitors, you may find yourself left behind.

The Significance of Measuring Failures

When you think about it, why are these insolvency numbers so important? They give us a glimpse into the broader economic conditions. However, they don’t paint the full picture. Countless businesses fold without ever going through the insolvency process. This raises the question: how can we better support these struggling businesses?

What Can Be Done?

We need to think creatively. Here are some strategies to consider:

  1. Strong Cash Flow Management: Maintaining robust financial practices can prevent major setbacks.
  2. Seek Guidance: Consulting with business mentors can provide invaluable insights.
  3. Flexibility is Key: Being adaptable to changing market demands can keep a business afloat.

A detailed examination of these factors reveals that each statistic embodies a narrative. Gaining insight into these dynamics enhances our understanding of the current business environment and facilitates the development of more effective solutions.

Bankruptcy and Business: Understanding Business Failures vs. Insolvency Rates

The current trend of rising bankruptcy and business failures can be alarming. We’re seeing numbers that remind us of the financial crisis back in 2008. But here’s the kicker: the official insolvency figures don’t tell the whole story. They only reflect a fraction of the businesses that close each year. So, what’s going on?

The Hidden Truth Behind Business Closures

When a business shuts down, sometimes bankruptcy and business do not go together. The business is insolvent, but as I stated in the introduction to this bankruptcy and business Brandon’s Blog, sometimes the wisest choice for owners is simply to close their doors rather than declare bankruptcy. Of course, in doing so, the business must treat its employees fairly in making sure that all wages and vacation pay are paid up in full, the books and records should be finalized, any leased equipment or consignment goods returned to their owners and all final government returns are filed.

A voluntary business closure raises a few questions:

  • Are entrepreneurs running away from the stigma of bankruptcy and business failure?
  • Do businesses fear the legal complexities of bankruptcy?

The Reality of Business Closures

Many businesses succumb to market pressures, competition, or changing consumer preferences. So even if a business doesn’t file for bankruptcy, it’s still part of a broader trend of bankruptcy and business failure.

Here are some factors contributing to these closures:

  1. Economic downturns: A slowdown can hit sales hard.
  2. Shifts in consumer behaviour: Staying relevant is crucial.
  3. Operational inefficiencies: Sometimes, a business just can’t keep up.

The data presented reflects not merely statistics, but real stories of individuals whose dreams and aspirations have faced significant challenges. Recognizing this broader context is crucial for comprehending the current realities of the business landscape.

bankruptcy and business
bankruptcy and business

Bankruptcy and Business: Understanding Business Failures Beyond Insolvency Numbers

Every year, countless businesses close their doors. But did you know most failures don’t make it to the insolvency list? It’s a striking fact. There’s a lot more happening beneath the surface.

The Real Picture of Business Failures

Business insolvencies are currently rising, reaching levels reminiscent of the 2008 financial crisis. However, these numbers only tell part of the story.

  • Insolvency counts are just the tip of the iceberg. Many businesses close without ever filing for bankruptcy.
  • They might choose to liquidate assets instead, avoiding formal insolvency procedures.
  • Some simply shutter their operation quietly, leaving no trail that stats can follow.

Why Do They Close?

Now, let’s dig deeper. Why do businesses close? Here are a few key reasons:

  1. Market changes: Trends shift rapidly. A product that sells today may be yesterday’s news tomorrow.
  2. Lack of funds: Often, owners run out of cash. It’s not always about being in debt.
  3. Poor planning: Without a solid business plan, success becomes a game of chance.

It’s critical to understand these points. When we consider the broader picture, it becomes clear that the narrative of bankruptcy and business failure encompasses much more than insolvency figures. So, when you hear those numbers, remember: behind every statistic, there’s a unique story. It’s worth exploring.

Bankruptcy and Business Behind the Scenes: A Personal Journey with Business Failure

Let me describe to you, with no names of course, about an entrepreneur who recently consulted with me. He truly believed in his retail business. It was welcoming, colourful, and brimming with potential. He had dreams of providing the best customer service in town. But, not long after the grand opening, he saw that it wasn’t working out. The foot traffic was lower than he anticipated, and the expenses kept piling up. He had to close the doors within a year of opening. It felt like a hard punch to his gut.

Lessons Learned

From this experience, he learned a few invaluable lessons:

  • Resilience is Key: Every setback can teach us something. We just need to be open to those lessons.
  • Adaptability Matters: The ability to pivot quickly can save a business. If he had been more flexible and had some staying power, perhaps he could have found a way to make it work.
  • Not All Bankruptcy and Business Failures Reflect Capability: Just because a venture doesn’t succeed it doesn’t mean that the person is not capable as an entrepreneur.

The Emotional Toll

Closing his store was not just a business decision; it hit him hard on a personal level. There’s a saying:

“Failure isn’t the opposite of success; it’s part of success.”

This resonated with him throughout the process. He felt a profound sense of loss—not just for his dream, but for his team and the community, albeit small, that had begun to form around his business. It’s important to recognize that every business closure affects many lives.

He will cherish the memories, good and bad. We often think of success as the ultimate goal. However, failures

can be just as important. After all, they prepare us for the next big opportunity.

Bankruptcy and Business: The Economic Ripple Effect of Silent Failures

Have you ever stopped to think about the impact of a business closing its doors quietly? It’s alarming. Each silent closure sends ripples through our communities. But how exactly does this happen?

Understanding the Broader Economy

When a business goes unnoticed, its effects are profound. For small towns and cities, local businesses are often the lifeblood of the economy. They provide jobs and foster a sense of community. But when they fail, a series of consequences unfold.

  • Potential job losses: Every unnoticed closure often results in job losses. It’s estimated that thousands of jobs are impacted as small businesses close each year.
  • Supply chain impacts: Smaller firms are interwoven into larger supply chains. When they disappear, disruptions occur, affecting many others reliant on their goods or services.

A Community Heartbreak

The silence surrounding these closures can be deafening.

“Every business closure is a community heartbreak.”

This isn’t just a catchy phrase; it’s the reality for many.

Large corporations may withstand economic struggles, but small businesses often can’t. Imagine a local diner you frequently visit, or a beloved independent bookstore. If these establishments close, the repercussions extend beyond just lost revenue. They can alter job security and change local culture.

We often overlook just how many jobs depend on these small firms. Have you considered what happens to job seekers when they vanish?

bankruptcy and business
bankruptcy and business

Bankruptcy and Business: Preventing the Silent Nightmare of Business Closure

We all know that running a business can feel like navigating through a storm. Sometimes, even the most resilient enterprises can face economic downturns that threaten their very existence. So, how do we ensure survivability? Here are some strategies to consider:

1. Embrace Innovation

  • Adapt to Market Trends: Staying ahead means constantly evaluating what’s working and what’s not. Are your customers shifting their preferences? Innovate to meet their needs.
  • Leverage Technology: Digital tools can streamline operations and reach wider markets. Tools like social media and e-commerce platforms can significantly boost visibility.

2. Cultivate Adaptability

We must understand that adaptability is key. If we don’t learn and pivot, we risk stagnation. Have you ever noticed how quickly the business landscape shifts? Continuous learning is not just a phrase; it’s a necessity. Training programs and workshops can enhance our expertise.

3. Build Community Support

One of the most effective strategies is building a strong support system. Entrepreneurs often feel isolated—this needn’t be the case. Engaging in community networks or mentorship programs can provide valuable guidance.

Imagine a gardener tending to a plant. It needs nurturing, sunlight, and sometimes a bit of pruning. Similarly, businesses thrive in supportive environments where they can learn and adapt. We need to reinforce this sense of community, where sharing experiences can lead to encouragement and growth.

Finally, I want to acknowledge that the journey is indeed tough. Yet, it is essential to focus on personal resilience. Everyone faces challenges. But through understanding and support, we can not only overcome but also flourish!

I urge you to seek out success stories, too. Businesses that have pivoted successfully often serve as a beacon of hope. They illuminate paths we never considered. By sharing our experiences and challenges, we help each other to thrive.

Bankruptcy and Business: Shining a Light on Shadows

As we’ve explored the complexities of business failures, one fact stands out: the numbers can be deceiving. The current rise in business insolvencies has raised eyebrows. But what’s behind these figures? Many businesses close their doors without formally declaring bankruptcy. This distinction is critical for understanding the health of our economy. Not all failures are recorded in official statistics. Every year, countless ventures close down quietly, leaving little trace. Each shuttered business represents dreams, investments, and hard work.

As we wrap up our discussion, it’s clear that *business failures* are more common than we often admit. Many business owners might feel isolated, and that’s understandable. But recognizing the reality of these failures is essential. It reminds us that every entrepreneur’s journey is difficult yet filled with opportunities to learn and grow.

Here are some key points we’ve explored:

  1. The numerous factors that contribute to business closures.
  2. The impact of community support on a business’s survival.
  3. How understanding failures can lead to future successes.

    bankruptcy and business
    bankruptcy and business

Bankruptcy and Business in Canada: FAQ

1. What is the difference between a business closing and a business going bankrupt?

Business closure and bankruptcy are distinct concepts in the realm of business operations.

Business closure refers to the termination of a business’s operations for various reasons. These reasons may include factors such as ineffective management, shifts in market conditions, or a deliberate choice by the owner to cease operations.

On the other hand, business bankruptcy is a legal process defined by the BIA in Canada. This occurs when a business officially declares its inability to meet its financial obligations. The bankruptcy process typically involves either restructuring debts through a formal proposal or liquidating business assets to repay creditors.

It is important to note that while bankruptcy often results in the closure of a business, not all closures are accompanied by bankruptcy proceedings. A business can close without filing for bankruptcy, opting instead to liquidate its assets and settle any outstanding debts on its own.

2. What are the main types of corporate bankruptcy in Canada?

Canada provides two main avenues for corporations encountering bankruptcy:

  • Proposal: This option involves submitting a formal payment plan to creditors for their approval. If the proposal is accepted and subsequently sanctioned by the court, the business can restructure its debts, continue its operations, and repay creditors over an extended period.
  • Bankruptcy: In this scenario, the corporation liquidates its assets to settle debts with creditors. The proceeds from the asset sales are allocated to creditors, starting with secured creditors, followed by a proportional distribution of any remaining funds to unsecured creditors.

3. What are some common reasons for business failure?

Business failure can result from various issues that can be categorized into three main areas:

Financial Challenges:

  • Poor cash flow management
  • High levels of debt
  • Insufficient funding
  • Ineffective budgeting practices

Operational Issues:

  • Inefficient operational processes
  • Inability to scale operations
  • Subpar management practices
  • Lack of innovation

External Factors:

  • Economic downturns
  • Heightened competition
  • Changes in regulations
  • Natural disasters

4. Why is the number of business closures likely higher than official insolvency statistics suggest?

Many businesses choose to close their doors without formally filing for bankruptcy. This could be due to several reasons:

  • Avoiding the stigma of bankruptcy: Some entrepreneurs may perceive bankruptcy as a personal failure and opt for a quiet closure.
  • Complexity and cost of bankruptcy proceedings: The legal processes involved in bankruptcy can be daunting and expensive, deterring some businesses.
  • Strategic decision to liquidate independently: Owners may decide to manage the closure process themselves, selling assets to settle debts outside of formal insolvency proceedings.

5. What are the economic consequences of unrecorded business closures?

Unrecorded closures have a significant impact on the economy:

  • Job losses: Closures, whether reported or not, often lead to job losses, impacting individuals, families, and communities.
  • Supply chain disruptions: Small businesses are often integral to larger supply chains. Their closures can disrupt these networks, impacting other businesses reliant on their goods or services.
  • Reduced economic activity: Closures reduce overall economic activity in communities, impacting local spending, tax revenue, and overall economic health.

6. What are some strategies to help businesses avoid closure?

  • Embrace innovation: Adapting to market trends, leveraging technology, and developing new products or services can help businesses remain competitive.
  • Cultivate adaptability: Continuous learning, training, and willingness to adjust strategies can improve resilience in the face of change.
  • Build community support: Engaging with local networks, seeking mentorship, and fostering collaboration can provide valuable resources and guidance.
  • Prioritize financial management: Strong cash flow management, responsible budgeting, and careful debt management are crucial for business stability.

7. How can we better understand the true landscape of business closures?

  • Improved data collection: Implementing better tracking mechanisms to capture closures beyond formal insolvency filings could provide a more accurate picture of business failure rates.
  • Research and analysis: Studying the reasons behind unrecorded closures can offer insights into common challenges and potential solutions.
  • Open dialogue and awareness: Encouraging entrepreneurs to share their experiences, both successes and failures, can normalize conversations about business closure and facilitate learning.

8. What is the key takeaway from understanding the difference between business closures and bankruptcy?

Recognizing that business closures are more prevalent than official insolvency statistics indicate is crucial. It highlights the challenges faced by entrepreneurs and emphasizes the need for support systems, innovation, adaptability, and sound financial management to foster business success and resilience. Acknowledging the silent failures allows for a more accurate understanding of the economic landscape and can help policymakers and support organizations develop strategies to address these challenges and better support businesses.

Bankruptcy and Business: Conclusion

So, why is it important to acknowledge these failures? It’s simple. They are not just numbers on a report; they are the culmination of hard work, dreams, and sometimes missteps. When a business fails, it can feel like a dark cloud, but it can also be the start of something new.

I hope you enjoyed this bankruptcy and business Brandon’s Blog. Do you or your company have too much debt? Are you or your company in need of financial restructuring due to distressed real estate or other reasons? The financial restructuring process is complex. The Ira Smith Team understands how to do a complex restructuring. However, more importantly, we understand the needs of the entrepreneur or someone with too much personal debt.

You are worried because you are facing significant financial challenges. It is not your fault that you are in this situation. You have been only shown the old ways that do not work anymore. The Ira Smith Team uses new modern ways to get you out of your debt troubles while avoiding the bankruptcy process. We can get you debt relief freedom using processes that are a bankruptcy alternative.

The stress placed upon you is huge. We understand your pain points. We look at your entire situation and devise a strategy that is as unique as you and your problems; financial and emotional. The way we take the load off of your shoulders and devise a plan, we know that we can help you.

We know that people facing financial problems need a realistic lifeline. There is no “one solution fits all” approach with the Ira Smith Team.

That is why we can develop a restructuring process as unique as the financial problems and pain you are facing. If any of this sounds familiar to you and you are serious about finding a solution, contact the Ira Smith Trustee & Receiver Inc. team today.

Call us now for a free consultation. We will get you or your company back on the road to healthy stress-free operations and recover from the pain points in your life, Starting Over, Starting Now.

The information provided in this Brandon’s Blog is intended for educational purposes only. It is not intended to constitute legal, financial, or professional advice. Readers are encouraged to seek professional advice regarding their specific situations. The content of this Brandon’s Blog should not be relied upon as a substitute for professional guidance or consultation. The author, Ira Smith Trustee & Receiver Inc. as well as any contributors to this Brandon’s Blog, do not assume any liability for any loss or damage resulting from reliance on the information provided herein.

bankruptcy and business
bankruptcy and business
Categories
Brandon Blog Post

BUSINESS BANKRUPTCY: SHOULD CANADA ADOPT A SATISFYING COMPLETE USA-STYLE PROCESS FOR SMALL BIZ RESTRUCTURING?

 

As the COVID-19 pandemic continues, we hope that you, your family, and your friends are safe, healthy, and secure. Ira Smith Trustee & Receiver Inc. is fully operational, and both Ira and Brandon Smith are readily available for phone or video consultations.

Business bankruptcy: Insolvency for business

Hundreds of thousands of small businesses around the world have been affected by the lockdowns caused by the Coronavirus pandemic. There have been many company closures, and others have been forced to restructure. Although restructuring may be painful, it is necessary if you want to come out from under crippling debt and grow your business.

Many businesses experiencing financial difficulties simply shut their doors rather than restructure. Most small businesses cannot reorganize their company debts under the Bankruptcy and Insolvency Act (Canada) (BIA) due to the high costs of administration. A small business owner does not benefit from spending money to have a business bankruptcy. It is therefore only possible to lock the door and give the key to one of the secured creditors, usually the bank or to the landlord.

Globally, small and medium-sized businesses play an important role. In 2019, I wrote a Brandon Blog post about business bankruptcy issues that US bankruptcy experts identified as problems for small business bankruptcy restructuring with Chapter 11 restructurings. This process was not working for these businesses. Chapter 11 restructurings are expensive, ineffective, and impractical. The US insolvency system therefore could not help many businesses in need of restructuring in the USA.

In this Brandon Blog, I provide an update on the successful experience and unanimous calls to extend the US subchapter V of Chapter 11 of the United States Bankruptcy Code. Therefore, I revisit the question as to whether such a small business bankruptcy tool should exist in Canada.

Business bankruptcy and Insolvency at a glance

Congress passed the Small Business Reorganization Act (SBRA) on July 23, 2019. On August 1, the Senate passed the bill. In August 2019, it became law.

SBRA makes business bankruptcy protection easier for small and medium-sized enterprises. Chapter 11, subchapter V of the US Bankruptcy Code (Title: Small Business Debtor Reorganization) is the result. Increasing its affordability will help save otherwise viable owner-managed businesses.

SBRA defines a small company as one with non-contingent debts of $2,725,625 or less, leaving out financial obligations to affiliates or parties not dealing at arm’s length, and which elects to be dealt with under the SBRA. A new subchapter V to Chapter 11 of the US Bankruptcy Code is included in the Act. In this new approach, small companies are able to restructure efficiently with greater ease and at a lower cost.

The primary purpose of this legal process is:

  • Secured creditors and unsecured creditors cannot lodge a Chapter 11 restructuring plan that it is prepared to support. Only businesses with debt problems can. In most cases, the company’s plan must be filed within 90 days of when it filed for bankruptcy protection.
  • To manage each case, trustees similar to those selected in a personal restructuring (Chapter 13) situation will be selected.
  • A creditors committee will not be established.
  • If the home loan/mortgage secured by the home was used to fund the business, the Chapter 11 plan can change the legal rights of the lender.
  • It is possible for a Court to approve a small business bankruptcy restructuring plan without the approval of any class of creditors. If the court is satisfied that all creditors are treated fairly and no creditor class is prejudiced, it will approve the restructuring plan,.
  • A restructuring plan must ensure that all earnings received during the restructuring will be available to fund the restructuring for a period of 3 to 5 years in order to be fair and equitable.

Consequently, it is the responsibility of the creditors to carefully review all cases filed under SBRA. The creditors should consult bankruptcy experts for guidance. Their role will be to ensure that restructuring cases are fairly examined by courts and that all creditors are treated equally. For those without the support of their creditors, this will be particularly true.

It will be very interesting to see if this new legislation accomplishes its goal of simplifying and reducing the costs associated with business bankruptcy restructuring for small businesses.

business bankruptcy
business bankruptcy

Business bankruptcy: The bottom line on the SBRA

This tool was successful in protecting small businesses from bankruptcy liquidation. Republicans and Democrats alike have embraced this obscure federal program that allows small-business owners to shed debt in bankruptcy protection so much, they are now considering extending it. Republican and Democratic agreement on anything is very rare these days.

In a Subchapter V bankruptcy, closely-held businesses can file for bankruptcy much more quickly and inexpensively than they would in a Chapter 11 bankruptcy. The government appoints a trustee with limited powers who assesses the company’s finances and helps reach a consensus with creditors. Rather than official creditor committees, there is only a trustee appointed by the government. Furthermore, company owners don’t risk losing control of their companies to creditors, a common outcome in bankruptcy.

When the pandemic ravaged thousands of small businesses, the government raised the debt threshold to qualify for Subchapter V to $7.5 million from $2.7 million and extended it an additional year. In the absence of another renewal, the higher limit will expire next month, shutting out thousands of companies that could benefit as they deal with new challenges such as supply chain issues and higher interest rates.

The main benefits of the SBRA business bankruptcy protection

Quick response

Since the program began, more than 2,800 cases have been filed. Restructuring advisers predict that number will rise as banks and landlords become more aggressive in collecting overdue loans and back rent.

Government assistance and eviction moratoriums have enabled small businesses to exist in limbo but that won’t last. Experts predict that more subchapter V filings will take place in 2022.

The American Bankruptcy Institute studies bankruptcy statistics. They state that the quick turnaround time of Subchapter V has attracted and will attract more filings.

Corporation envy

Some distressed corporations are so envious of Subchapter V that restructuring advisers are hunting in vain for strategies that might let their bigger clients qualify. For example, there was a company with 130 company-owned locations that filed for bankruptcy protection in 2020. It initially attempted to file individual brick-and-mortar locations under the program, before switching to a chapter 11 proceeding.

This business bankruptcy restructuring statute has proved to be a lifeline for smaller companies and should be extended.

business bankruptcy
business bankruptcy

The Canadian business bankruptcy and restructuring landscape

Canada lacks an equivalent streamlined corporate insolvency restructuring statute. There are two Canadian insolvency regimes: the Companies’ Creditors Arrangement Act (CCAA) and the BIA. For large corporations, the CCAA applies. The process is heavily governed by the courts. In my opinion, it would not be possible to sufficiently streamline the CCAA for small businesses to have enough staying power during restructurings under the CCAA to survive.

A streamlined restructuring process is possible under the BIA for small and medium-sized businesses. There was a streamlined restructuring process for individuals so that consumer bankruptcies can be avoided. These consumer proposals are found in Part I Division II of the BIA. So why not a special restructuring proposal section for smaller companies? I called it a new Part I Division III of the BIA in my earlier Brandon blog I referred to above – a general scheme for small business proposals (SBP) section of the BIA. The aim is to provide small businesses with the opportunity to restructure business debts on a cost-effective basis rather than to make Canadian bankruptcies the only real option to consider.

In the US, using a streamlined restructuring model has been so successful. That’s why I am bringing back my idea from 2019. I won’t repeat everything, however. You can see what my recommendations were by reading my blog – BANKRUPTCY EXPERTS WEIGH IN ON US & CDN SMALL BIZ RESTRUCTURING.

Business bankruptcy: The debtor (owes money) not the creditors (are owed money) would control the reorganization

An insolvent corporation, sole proprietors, or partnership that is set up to conduct business should be able to access the new SBP. The total amount of their debt should not exceed $1.5 million. Such a number is not based on any scientific calculations.

In order to determine an appropriate debt level, Statistics Canada could assess the average debt load of Canadian businesses. In this discussion, I’ll use the $1.5 million amount.

Loans from affiliates or from people with a non-arm’s-length relationship would not be excluded as in US law. A Canadian company’s first funding is usually provided by its owners. Chartered banks require owners to make a commitment with their personal assets before they are willing to lend. To get the business off the ground, the owners sacrificed their own money. Because they had to finance the company that way, I would not exclude that debt from the calculation.

The Canadian business landscape differs from the American one. We tend to be smaller in size. For non-arm’s-length debt to be excluded, the debt threshold would have to be lowered. Keeping that debt threshold in mind, let us include all debt, whether it’s secured or unsecured, related, or arms’ length.

This new SBP would not be applicable to people who are not conducting business in their own name. Those people will fall into either Division I or Division II restructuring proposals which include two mandatory credit counselling sessions.

Restructuring proposals can currently only be administered by a licensed insolvency trustee (formerly called a bankruptcy trustee). A licensed insolvency trustee is known as the Proposal Trustee under Division I Proposals. As part of Division II personal restructurings, they are known as the Administrator.

Therefore, I will call the Trustee the Small Business Administrator for the new SBP. As a result, it is obvious that it is the restructuring of a business that qualifies under Division III. The use of the word “administrator” is consistent with the words used by Parliament for consumer proposals. Again, this means that the Trustee is administering a streamlined restructuring for small businesses.

The main points I recommended in my earlier blog in a Canadian small business streamlined restructuring statute include:

  • Currently, it is possible for a company or person to begin the restructuring process by filing either a Notice of Intention to Make A Proposal (NOI) or a Proposal itself. Regardless of the filing method, there is a 10-day limitation period under which the debtor must submit a cash-flow statement that has been reviewed and approved by both the company or person and the Trustee. A company or individual filing an NOI then has an additional 20 days (30 days after the filing date of the NOI) to file a Proposal (unless the court extends the time).

I propose extending the deadline for filing a Proposal from 30 days to 90 days after the filing of an NOI, without the need to go to the Court for an extension. As a result, the business should have enough time to get all of its tax and corporate filings up to date and, hopefully, avoid the need to adjourn the meeting of creditors.

  • A creditor would file a proof of claim in the same way they do now in a BIA Proposal.
  • There is a concept of deemed creditor approval and deemed court approval in the current consumer proposal legislation. A creditors’ meeting is not necessary unless creditors holding 25% of the proven claims request it. In addition to the proof of claim process, creditors receive voting letters to cast their vote when they submit a proof of claim. If there is no obligation to convene a meeting, a consumer proposal is considered accepted.If a consumer proposal is either accepted or deemed accepted by the creditors, the Trustee Administrator will probably not need to seek approval from the Court. There are no deeming provisions in corporate restructuring, either for creditor acceptance or for court approval. The new SBP section should include similar provisions regarding creditor acceptance and court approval. This would save time and money, thus enhancing efficiency.
  • The Meeting of Creditors if required, would be held 21 days after the Trustee Administrator recognizes that the small business restructuring did not receive deemed approval.
  • When creditors fail to vote in favour of a Division I Proposal or when the court does not approve it, it is automatically deemed an assignment in bankruptcy. This does not apply to consumer proposals. Debtors return to their normal state without creditor protection after an unsuccessful consumer proposal attempt.For the new streamlined business restructuring proposal law, if creditors fail to accept or the court does not approve the restructuring plan, then that does not automatically mean there is a bankruptcy. The debtor small business would simply return to its normal unprotected insolvent state and must defend itself against creditors.A voluntary assignment into bankruptcy may result, but not automatically. A bankruptcy proceeding does not make sense in certain corporate situations. If a chartered bank holds security over all assets it will enforce its security through a receivership, this is especially true.

Business bankruptcy summary

A streamlined small business bankruptcy protection section is working in the US and both Republicans and Democrats want it extended and made to be able to handle even more bankruptcy cases. So why should we not have one in Canada too? I know that it could work.

I hope you found this business bankruptcy Brandon Blog informative. Although nothing is guaranteed, managing your debt in a way that will allow you or your company to be able to afford it, will lead to your financial success. It will also give you the best shot at having a financially stress-free life.

Are you or your company in financial distress and a debt crisis? Are you embroiled in costly litigation or a crushing debt load and need a time out in order to restructure? Do you not have adequate funds to pay your financial obligations as they come due? Are your credit cards maxed out? Are you worried about what will happen to you? Do you need to search out easy-to-understand debt solutions and realistic ones for your family debt problems? Is your company in financial hot water?

Call the Ira Smith Team today. We have decades and generations of experience assisting people looking for life-changing debt solutions through a debt settlement plan and AVOID the bankruptcy process.

As licensed insolvency professionals, we are the only people accredited, acknowledged and supervised by the federal government to provide insolvency advice and to implement approaches to help you remain out of personal bankruptcy while eliminating your debts. A consumer proposal is a Government of Canada-approved debt settlement plan to do that. It is an alternative to bankruptcy. We will help you decide on what is best for you between a consumer proposal vs bankruptcy.

Call the Ira Smith Team today so you can eliminate the stress, anxiety, and pain from your life that your financial problems have caused. With the one-of-a-kind roadmap, we develop just for you, we will immediately return you right into a healthy balanced problem-free life.

You can have a no-cost analysis so we can help you fix your troubles.

Call the Ira Smith Team today. This will allow you to go back to a new healthy and balanced life, Starting Over Starting Now.

As the COVID-19 pandemic continues, we hope that you, your family, and your friends are safe, healthy, and secure. Ira Smith Trustee & Receiver Inc. is fully operational, and both Ira and Brandon Smith are readily available for phone or video consultations.

business bankruptcy
business bankruptcy
Call a Trustee Now!